Fundamental rights should not be subject to popular vote

A hate-filled ballot initiative that would authorize the killing of gay people may soon be released to begin the signature-gathering process. While it is almost certain this terrible initiative will never make it to the ballot box, other hate-based initiatives have and will again.

Californians have a long history of hateful initiatives. In 1964, California voters passed Proposition 14 to repeal the Rumford Fair Housing Act, a statute that prohibited discrimination in housing based on race, religion and gender. Passed by 65 percent of the voters, Proposition 14 made it lawful to discriminate and went even further, changing California’s Constitution to prohibit the state and local governments from enacting fair-housing laws.

As the argument against the initiative in the voter guide said, “Proposition 14 would write hate and bigotry into the constitution.” The ACLU challenged the initiative on behalf of Dorothy Mulkey, an African American woman denied the right to rent an apartment. The case went all the way to the U.S. Supreme Court, which upheld the California Supreme Court’s decision that Proposition 14 violated the equal protection clause of the 14th Amendment of the U.S. Constitution. Years later, California voters redeemed themselves by repealing the hateful proposition.

Just 6 1/2 years ago, California voters approved Proposition 8, taking away the right of gay men and lesbians to marry the person they love. While Proposition 8 is no longer in effect in California as a result of legal challenges in federal court, its words remain in our state Constitution.

Never miss a local story.

Sign up today for a free 30 day free trial of unlimited digital access.

It doesn’t have to be this way. Eight states and Washington, D.C., have some form of precertification review to ensure that only constitutionally sound measures make it onto the ballot. Three of those jurisdictions go even further and completely prohibit ballot initiatives that seek to limit specified constitutional rights. These jurisdictions have concluded that some constitutional rights are so fundamental, so core to our democracy, that they simply should not be subject to popular vote, at least not based on the petition-gathering process alone. Instead, proposals that would limit fundamental constitutional rights must go through a more rigorous review process involving the legislature before being submitted to the voters, a process similar to what we use in California for a constitutional “revision.”

In response to the current hate-based initiative, some have called for Attorney General Kamala Harris to refuse to issue a title and summary, or for the state bar to revoke the license of the proponent, a Southern California lawyer. The public outcry against hate is a great thing and should be applauded. But these specific proposals miss the larger point: California simply shouldn’t put fundamental individual rights to a vote.

The attorney general has taken the unusual step of asking the Sacramento Superior Court to relieve her of the ministerial duty of issuing a title and summary for this particular initiative. It is understandable that she doesn’t want to be, in effect, a partner to discrimination and vigilantism by treating this extreme measure as a routine initiative. And, despite the traditional reluctance of courts to intervene early in the initiative process, a measure so extreme and obviously unconstitutional may in fact die an early death at the courts.

Less outrageous yet equally hate-filled measures will make it to the ballot, though, unless we change the system.

To stop hate-based initiatives, California could follow the lead of states like Massachusetts and say some fundamental rights should never be put to popular vote through the petitioning process. Would it be easy to decide which rights are “fundamental”? No, not at all. But it is a conversation worth having. After all, the initiative process, a Progressive reform, was intended to empower vulnerable communities, not harm them.

Natasha Minsker is director of ACLU of California’s Center for Advocacy and Policy.